# Wood v. State

> Court of Criminal Appeals of Oklahoma · April 4, 1986 · 716 P.2d 707

URL: https://www.frixlaw.com/law-library/cases/5160701

## Case

- **Full name:** Lawrence Douglas WOOD v. STATE of Oklahoma
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** April 4, 1986
- **Citations:** 716 P.2d 707; 1986 OK CR 47; 1986 Okla. Crim. App. LEXIS 240
- **Precedential status:** Published
- **Opinion:** Dissent by Parks
- **Judges:** Brett, Bussey, Parks
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5160701

## Opinion text

PARKS, Presiding Judge,
dissenting:
I must respectfully dissent regarding the majority’s treatment of appellant’s first assignment of error. The Oklahoma Legislature has set forth several required procedures for the efficacy of operation of the breathalyzer apparatus and the reliability of the results therefrom. See 47 O.S.Supp. 1982, § 756(d)(e). Furthermore, the Oklahoma Legislature has delegated the responsibility of “approv[ing] satisfactory methods, procedures, techniques, devices, equipment and records for tests and analysis ... for the purposes of determining the alcohol concentration ... and concentration of any other intoxicating substance” to the Board of Tests for Alcohol and Drug Influence. 47 O.S.Supp.1982, § 759(c). This Court has also held that the failure to comply with all the rules and procedures promulgated by that Board, on any given test, invalidates the test in question. Westerman v. State, 525 P.2d 1359 (Okl.Cr.1974).
In the instant case, the appellant contends that the State did not prove an element of the crime since there was no evidence presented that the breathalyzer was actually reading grams of alcohol per two hundred ten (210) liters of air. The appellant’s contention has merit. This Court has previously stated that breathalyzers are considered reliable machines for the measurement of levels of intoxication. Edwards v. State, 544 P.2d 60, 62 (Okl.Cr.1975). As with any scientific measuring apparatus, the machine is dependent upon careful calibration for its accuracy. Theoretically, the device measures the content of alcohol dissipated in the alveolar air of the lungs. Empirical data suggests that a constant ratio exists between the concentration of alcohol in the bloodstream and the concentration of alcohol in the alveolar air of the lungs. Therefore, intoxication levels may be determined by an accurate reading of the alcohol concentration of the alveolar air. An analysis, which has not been calibrated properly, may prejudicially skew the results of the analysis and yield inaccurate results.
The State suggests that the prosecution has fulfilled its burden of proof since calibration of the apparatus is not a requisite element of the offense. This assertion is erroneous since the language of the statute requires proof of “breath alcohol concentration, as defined in Section 756 of this title of ten-hundreths (0.10) or more ...” 47 O.S.Supp.1982, § 11-902(A)(1) (emphasis added). Section 756 defines alcohol concentration as “grams of alcohol per two hundred ten (210) liters of breath ...” 47 O.S. Supp.1982, § 756(d). The trial court similarly instructed the jury that a requisite element of the offense is proof of “blood or breath alcohol concentration of .10 of more.” The jury was further charged that “[ajlcohol concentration shall- mean grams of alcohol per 100 milliliters of blood if the blood was tested, or grams of alcohol per 210 liters of breath if the breath was tested.”
No evidence was presented to demonstrate that the machine was in fact measuring alcohol concentration in grams per two hundred ten liters of breath. Moreover, the prosecutor, in his closing argument, admitted:
It was pointed out that you have to prove — the State has to prove the blood or breath alcohol concentration of .10, and pointed out that when breath is tested that grams of alcohol per 210 liters of breath. And counsel pointedly pointed out no word of that every [sic] came out on the witness stand. Not once did any of those witnesses testify in terms of *710 alcohol per 210 liters. (Emphasis added).
For this reason, the State has failed its burden of proof, since it neglected to present evidence of a material element of the offense. The trial court should have sustained the appellant’s motion for a directed verdict. Therefore, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5160701. Public record. Not legal advice.